HKSAR v. KHAN ASIF

DCCC 351/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 351 OF 2014

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to three charges: two charges of trafficking in a dangerous drug and one charge of possession of Part I poison.

2.  The first charge involves 13.96 grammes of a mixture containing 9.19 grammes of heroin hydrochloride.  The second charge involves 29.23 grammes of a mixture containing 20.09 grammes of heroin hydrochloride and 6.62 grammes of a solid containing 5.27 grammes of cocaine. The third charge involves seven tablets containing phenazepam, a Part I poison.

3.  The facts of this case are very straightforward.

4.  On 11 February this year, late evening, defendant was intercepted by police on Bute Street in Mong Kok.  It was a stop-and-search case and the defendant was holding a packet of drugs in his right hand.  Those are the drugs of Charge 1.

5.  He was arrested and cautioned.  He immediately admitted to the police that he sold drugs to make money. 

6.  The police then searched his home, which was on the same street, and found the drugs of Charge 2 as well as other paraphernalia normally associated with trafficking dangerous drugs, such as an electric scale and small resealable plastic bags.

7.  Later, under caution again, he admitted that all the drugs found on him and in his home belonged to him, and he admitted that he was himself a heroin drug addict.

8.  The best mitigation today is the defendant’s plea of guilty.

9.  The defendant is 28 years old, a Pakistani national, but he was brought up in Hong Kong, including being educated here. 

10.  I have had sight of a Drug Addiction Treatment Centre report dated 20 February 2013.  It sets out in full the details that I need to know.  It seems the defendant has had a drug problem for the last six to seven years.  His habit includes consumption of heroin and “Ice”.

11.  The defendant left school early and did not get a full education, but he has managed to find employment as a construction site worker.  He says he earns $500 a day, which is why he can afford to buy dangerous drugs. 

12.  I do note, however, that the estimated street value of all the drugs is over $43,000.

13.  I have heard full mitigation today and that includes letters of mitigation from the defendant’s father, two sisters and a prison chaplain, Mr John Wetherspoon.

14.  I have also received a letter from the defendant, expressing remorse, acknowledging that he has brought shame on himself and his family.  Now, he asks for leniency and promises to turn over a new leaf for the sake of his family.

15.  The total quantity of pure heroin in both charges adds up to 29.28 grammes.  The quantity of pure cocaine is 5.27 grammes.  Together, the drugs weigh 34.55 grammes. 

16.  I can consider them together because the guidelines for sentencing traffickers of heroin and cocaine is the same guideline and I have referred to R v Lau Tak Ming [1990] 2 HKLR 370.  In that authority, the Court of Appeal says where between 0 to 10 grammes of, in that case, heroin was trafficked, an appropriate starting point would be between 2 to 5 years, and where between 10 to 50 grammes is trafficked, that would attract a starting point of between 5 to 8 years.

17.  34.55 grammes of pure drugs, mathematically speaking, would attract a starting point of just over 6½ years.  Any more drugs in this case, this defendant would be looking at his charges being dealt with in the High Court.

18.  I have sight of the defendant’s criminal record.  Considering the defendant is only 28, he has been in prison several times and Drug Addiction Treatment Centres several times.  In fact, he is presently serving a Drug Addiction Treatment Centre order dated March 2014.

19.  Despite his many previous convictions, this is his first conviction for trafficking dangerous drugs.  He does have two previous for possession of dangerous drugs.  His other convictions include theft and burglary.

20.  It has been submitted on behalf of the defendant that part of the heroin in these charges and in his possession would have been for self-consumption.

21.  Mr Boyton does not seek to quantify the amount, but, looking at the obvious fact the defendant has a drug addiction problem, I accept that this mitigation is good.

22.  Prosecution do not challenge this submission.

23.  I have considered the authority of HKSAR v Chow Chun Sang, CACC 135/2011.  That authority refers to a percentage that can be deducted from a starting point, where some of the drugs is for self-consumption. 

24.  Having considered that authority, I will lower the starting point I take by just under 15 per cent.  I do not see that it deserves any more discount, bearing in mind that the latent risk factor still exists.

25.  Defendant, please stand up.

26.  Having heard mitigation today, considered the facts of the case, your plea, quantity of dangerous drugs in Charges 1 and 2 together, and the guidelines from the Lau Tak Ming authority (because I add the dangerous drugs of Charges 1 and 2 together, I will take a global approach here), I find that the drugs of both charges would attract a starting point of 6 years and 6 months (78 months).

27.  First, I will deduct 11 months to reflect that a portion of the drugs may or would have been for self-consumption.  That would lower the starting point to 67 months for Charges 1 and 2, and the defendant is entitled to a further discount for his plea and mitigation I have heard.

28.  I reduce that 67 months’ starting point down to 38 months, which is 3 years and 2 months.

29.  I propose to sentence the defendant as follows:

(1) first charge would be 2 years and 6 months;

(2) the second charge would be 3 years and 2 months;

(3) Charge 3 is a very small number of tablets. I will sentence the defendant to 3 months’ imprisonment for that charge. The seriousness and the quantity is de minimus compared to Charges 1 and 2.

30.  All three charges will be served concurrently.

31.  That is a total sentence of 3 years and 2 months.

COURT: Do you understand that sentence?

DEFENDANT: I understand.